An employer client recently told me that the company was poised to terminate an employee for a serious violation of one of the company's policies, when the employee's spouse called the employer and advised that his wife was being checked into a drug rehabilitation facility. Should the employer move forward with the termination, or wait until the employee completes rehabilitation, returns to work, and then terminate her?

Of course, the company was concerned about the well-being of its employee, but it also knew that it would be delaying the inevitable if it were to wait to terminate the employee. Also, it knew that, by waiting, it might later run the risk should the employee dispute her termination that the termination would appear to be fabricated and a pretext for retaliation.

In this scenario, the employer could be damned if it did, and damned if it didn't. The FMLA does not preclude an employer from terminating an employee on FMLA leave who would have been terminated regardless of her FMLA leave status. However, if the company terminated the employee on the heels of her request for FMLA leave, she still might be able to claim interference with her FMLA rights and/or retaliation. If the company terminated her following her FMLA leave, she also could claim retaliation. What should an employer do in this situation?

1. Ensure that the reason for termination is as iron-clad as possible. The company should confirm that the conduct in question contravenes its policies, and evaluate what it has done in the past when faced with similar violations. In this case, the company had terminated another employee (who had not requested FMLA leave) recently for the same violation. Evidence that other employees who did not request FMLA were treated the same is very helpful in defending against potential FMLA claims. Of course, if other employees who engaged in similar conduct had simply received a "slap on the wrist," the company would need to reevaluate why it was moving forward with termination in this instance.

2. Document, document, document. Document the policy violation clearly as soon as it occurs. If the company decides to move forward with the termination now, the company should send a termination letter to the employee detailing the reason for the termination.

3. Be decent. We hear so often from laid off employees and jurors alike that they want to punish the employer in question because the termination was communicated in a nasty, impersonal way. The scenario described above presents a difficult dilemma, because the employee is not available to talk now, but the company does not necessarily want to postpone the termination. The company could send a termination letter, but ask in the letter that the employee let them know when the employee is available to discuss the decision, and then follow up to discuss the termination with the employee. In addition, the company could send its assurances to the employee that it would continue to cover her under its health insurance plan, if feasible and permitted under the health plan, for the remainder of the month. (In the scenario above, under the employer's health insurance plan the employee's coverage would not terminate until the end of the month). Another alternative is offering the employee some severance, or payment for a period of time of premiums for health insurance continuation coverage under the Consolidated Omnibus Budget Reconciliation Act of 1985 (COBRA), in exchange for the employee signing a release of any claims against the company.

Whether the timing is right requires an individualized analysis. By following the tenets above, employers should be able to reduce the risk that they will be sued for violating the FMLA.

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